KIMIIKO WOODS v. TOWNSHIP OF IRVINGTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4972-07T24972-07T2

KIMIIKO WOODS,

Plaintiff-Appellant,

v.

TOWNSHIP OF IRVINGTON,

IRVINGTON POLICE DEPARTMENT,

AMANDA KOONTZ, JOHN MOLISSO,

and MICHAEL CHASE,

Defendants-Respondents.

_______________________________

 

Argued May 4, 2009 - Decided

Before Judges R. B. Coleman, Sabatino and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5546-05.

Juan C. Fernandez argued the cause for appellant (O'Toole, Fernandez, Weiner, Van Lieu, L.L.C., attorneys; Mr. Fernandez and Dawn M. Sullivan, of counsel and on the briefs).

Louis W. Childress, Jr., argued the cause for respondents Township of Irvington, Irvington Police Department and Michael Chase (Childress and Jackson, L.L.C., attorneys; Mr. Childress, of counsel and on the brief).

Aldo J. Russo argued the cause for respondent John Molisso (Russo & Della Badia, L.L.C., attorneys; Mr. Russo, on the brief).

David C. Stanziale argued the cause for respondent Amanda Koontz (David C. Stanziale, L.L.C., attorneys; Mr. Stanziale, of counsel and on the brief).

PER CURIAM

In this employment case, plaintiff Kimiiko Woods appeals the summary judgment dismissal of her complaint, which alleged: (1) retaliation in violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14; (2) discrimination and hostile work environment based on gender in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49; (3) violation of Article 1 of New Jersey Constitution; (4) common law false light invasion of privacy, intentional infliction of emotional distress, and breach of the implied covenant of good faith and fair dealing; (5) denial of due process and equal protection; (6) violation of First Amendment rights; and (7) violation of 42 U.S.C.A. 1983.

On appeal, plaintiff contends, in part, that the motion judge improperly relied on facts not in evidence; improperly granted summary judgment as to all of her claims; disregarded or failed to consider material questions of fact; and improperly granted summary judgment to defendant Michael Chase, the Chief of Police of defendant Township of Irvington Police Department (IPD). We affirm in all respects, except we reverse and remand as to plaintiff's CEPA retaliation claim, and for a ruling on the individual defendants' unresolved assertions of qualified immunity.

The facts are derived from evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, viewed in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). This matter concerns a dispute over the procedures for storing photographs taken of an arrestee who claimed police brutality. At the time of the dispute, plaintiff, an African-American female, was assigned to the IPD's Internal Affairs Unit (IA). Also working in IA at the time were plaintiff's supervisor, defendant Amanda Koontz, an African-American female, defendant John Molisso, and Detectives Roman Melenka and Melvin Shamberger.

On the evening of Saturday, August 16, 2003, plaintiff was assigned to investigate allegations of police brutality, which occurred during the narcotics arrest of Omar Heyward. On the same evening, defendant Michael Chase, the Chief of Police, arrested Lawrence Bennett, who was suspected of having engaged in a drug transaction with Heyward.

IA is responsible for investigating police brutality claims. According to Molisso, the IA procedures involving allegations of police brutality required that IA interview and take photographs of the victim or complainant and "maintain those photos for [IA] purposes." Despite this procedure, because Heyward had claimed police brutality during the arrest, Chase ordered one of the arresting officers, Officer Farmer, to take photographs of Heyward rather than an IA officer because he wanted them "taken as contemporaneous to the event as possible[,]" and he did not "know how long it would take for the [IA] detectives to respond." Molisso was unsure why Chase ordered Farmer to take the pictures. He stated that the photos "should have been taken by [IA] personnel."

The photos were logged into the IPD's computer evidence tracking systems known as the B.E.A.S.T., which records the chain of custody of all evidence obtained during arrests. Chase also ordered Koontz, who was at scene of the arrest, to keep the photos as part of the IA file. Chase explained that if Koontz did not follow his order, she could be subject to disciplinary charges. Plaintiff claims that she was unaware that photos of Heyward had been taken and unaware of Chase's orders to Farmer and Koontz.

On August 18, 2003, plaintiff received copies of the police reports of Heyward's arrest and the photos from Sergeant Noel of the Neighborhood Stabilization Unit (NSU). Plaintiff spoke with Molisso about the photos, and they agreed that it was improper for IA to keep them. At Molisso's direction, plaintiff returned the photos to NSU. She and Molisso gave the following reasons for returning the photos: (1) because Farmer had taken them, they should remain with his reports and all other evidence; (2) it was against IA policy to retain the photos because IA had not logged them into the B.E.A.S.T.; and (3) the photos were of no use to IA because Farmer, the officer being investigated, took them, and thus they were tainted for IA purposes. Plaintiff also believed that the photos were sent to IA to prevent their discovery in the Bennett matter.

According to plaintiff, on the morning of August 19, 2003, Koontz called her at home and advised her that Chase was looking for the photos and the tape transmission of the arrest. Plaintiff advised Koontz that, per Molisso's direction, she had returned the photos to NSU and that the tape was on her desk. Plaintiff then went to the IA office to find the tape and give it to Chase. Upon arriving at the IA office, plaintiff notified Chase that she had returned the photos to NSU per Molisso's advice. Chase responded that he never spoke with Koontz about the photos. Plaintiff concluded from this that Koontz had fabricated the story about Chase in an attempt to justify her concealing of evidence in the Heyward investigation.

On August 20, 2003, plaintiff submitted her first formal complaint to Molisso about Koontz's treatment of plaintiff. Molisso allegedly returned the complaint to plaintiff, advising her that she "would become a 'walking bulls-eye' if [she] submitted the complaint . . . [and] that she should seek assistance from outside the Department."

On August 22, 2003, Koontz advised Molisso that plaintiff "was being hostile and unprofessional in her interactions with [Koontz]." Koontz believed that plaintiff resented Koontz's supervisory position because plaintiff "had gotten accustomed to doing the work of a supervisor" before Koontz joined IA and was having "a hard time relinquishing her self-appointed authority."

Molisso then met with Koontz and plaintiff on August 22, 2003, and explained to Koontz IA's procedures for photographing victims and for storing the Heyward photos. It was apparent to Molisso that plaintiff was upset with what she believed was Koontz's interference in the Heyward investigation. It was also apparent to Molisso that "Koontz was not being afforded the respect she deserved as a supervisor." Accordingly, Molisso explained to plaintiff that "Koontz, in her capacity as a supervisor was entitled to monitor any and all investigations being conducted in [the] office."

Koontz claimed that Molisso advised her that IA "could have taken [its] own photographs, . . . but since that was not done [in this case], it was not a concern as long as the photos had been taken." Koontz also claimed that Molisso stated that IA "could have left the photographs with [NSU] and retrieved them when [they] needed them, or [IA] could have kept them [in the IA] office."

On August 25, 2003, Koontz removed the photos from NSU and put them in the IA office. Plaintiff stated that later she saw the photos in the drawer of a typewriter stand in the IA office.

Thereafter, the relationship between Koontz and plaintiff steadily deteriorated. Plaintiff claimed that she endured "retaliatory, harassing and discriminatory treatment . . . with no relief." For example, Koontz allegedly removed plaintiff from previously assigned investigations, assigned plaintiff fewer investigations than plaintiff's counterparts, reduced her workload, excluded her from callouts, required her to obtain prior approval to work overtime, and ignored or gave her the "cold shoulder." Plaintiff claimed that male officers who had complained about Koontz were not "subjected to the same treatment."

Koontz claimed that plaintiff engaged in a variety of "insubordinate" behavior. For example, plaintiff allegedly failed to complete her investigations, failed to consult with Koontz about her findings, and failed to submit investigations for Koontz's approval in violation of standard operating procedures. Koontz said that she did not "write [plaintiff] up . . . because [IA] is a small office with five individuals and [she] believed talking about the problems would be the best thing to do at the time." Thus, Koontz chose to participate in "counseling session[s]" with plaintiff moderated by Molisso.

On April 15, 2004, plaintiff filed complaints with the United States Equal Employment Commission (EEOC), the Department of Personnel, and the New Jersey Division of Civil Rights (NJDCR). She filed additional complaints with the EEOC and NJDCR on September 13, 2004, alleging sex discrimination because male officers who complained about Koontz did not face the retaliation to which Koontz subjected her.

On September 21, 2004, Chase sent Molisso a memo stating that as a result of plaintiff's EEOC complaint against Koontz, he made the following temporary changes: (1) plaintiff would report directly to Molisso and receive her assignments from him until the matter was "investigated and resolved"; (2) plaintiff was "not to work outside her regular assigned hours unless she is called out to handle an investigation or authorized by [Chase]"; and (3) Koontz's work days were temporarily rescheduled to Wednesday through Saturday.

In an April 1, 2005 memo, plaintiff advised Irvington Police Director Damiano of the alleged discrimination and hostile work environment to which Koontz subjected her as a result of her "speaking out against the violation of evidence procedures by . . . Koontz . . . as related to criminal investigations, which is clearly set forth in the Attorney General Guidelines[.]" Plaintiff also claimed that Koontz retaliated against and harassed her by freezing plaintiff out of IA investigations, reducing her duties, and other actions. Plaintiff also claimed that she had reported Koontz's behavior to Molisso and Chase, who did nothing to remedy the problem but instead blocked her out of department meetings. On April 7, 2005, Director Damiano responded that he would forward plaintiff's memo to the Township Affirmative Action Officer.

On April 18, 2005, Chase notified plaintiff that she was being temporarily transferred to A-Tour Patrol Division. According to Chase, he changed plaintiff's assignment so that her complaints "could be investigated without any further concern of any possible allegation of mistreatment or inappropriate action by any one of the alleged individuals[,]" including himself. Chase presented plaintiff with the order of reassignment in the presence of plaintiff's union representative. Molisso was not at work that day and did not participate in the decision to transfer plaintiff, as he normally would have in his supervisory role.

Because plaintiff's April 1 memo to Damiano alleged "criminal acts" by Koontz, on April 22, 2005, Chase forwarded it to the Acting Essex County Prosecutor, Paula Dow, and requested an investigation. The Prosecutor's Professional Standards Bureau (PSBP) instructed plaintiff to contact them, but she did not respond. Plaintiff also did not respond when PSBP attempted to contact her via cell phone. Finally, the PSBP requested that the IPD schedule an interview with plaintiff.

On May 16, 2005, PSBP was advised that plaintiff had retained counsel. Thus, the PSBP decided to forgo the interview and instead requested from plaintiff a "written report furnishing details of her allegation of criminal illegalities only." The PSBP also requested all "official written correspondence, reports and/or memoranda" concerning the alleged criminal activities.

On May 19, 2005 plaintiff's attorney advised the PSBP that plaintiff was withdrawing any criminal allegations and would file a civil lawsuit. On May 26, 2005, the PSBP closed the investigation, finding "no basis for criminal prosecution."

On May 19, 2005, plaintiff submitted another complaint to Damiano alleging further acts of retaliation and discrimination (her assignment to the Patrol Unit). Consequently, Melenka conducted an IA investigation. However, plaintiff protested an Order to Submit a Report from Melenka because her attorney preferred "the investigation to be conducted through his office." Plaintiff eventually submitted a report, under protest, on June 22, and June 23, 2005. Despite the pending investigation, plaintiff submitted another complaint to Damiano July 1, 2005, renewing her claims. Plaintiff filed a complaint in the Law Division on July 7, 2005.

On August 2, 2005, plaintiff was issued a Notice of Minor Disciplinary Action and an Order of Suspension, stating that she was suspended for five days without pay for "not assisting" in the PSBP matter, and for "failing to comply with the order to submit a report detailing specifically the criminal allegation [plaintiff] alleged." Plaintiff opposed the suspension in the Law Division. On November 3, 2006, Judge Leath entered an order vacating the Order of Suspension and removing it from plaintiff's record, finding that the suspension violated plaintiff's due process rights.

Although plaintiff was transferred to the Patrol Unit, she retained her detective status and the same basic rate of pay. However, IA detectives receive an additional $1200 clothing stipend since they do not wear uniforms, which plaintiff lost when she was transferred. Plaintiff's seniority and benefits were not affected by the transfer. Despite having submitted requests for transfers, plaintiff is currently still in the Patrol Unit, working the 3:45 p.m. to 3:00 a.m. or the 7:45 p.m. to 7:00 a.m. shifts. Plaintiff claims that a transfer to the Patrol Unit is considered a demotion throughout the Department.

I.

We first address plaintiff's contention that the trial judge improperly considered the summary judgment motion as to Chase. Chase never filed a formal summary judgment motion. However, his attorney, who also represented defendant Township of Irvington (Township), the IPD, and the other individual defendants, filed summary judgment motion on their behalf. In a supplemental submission, defense counsel included Chase in the motion. Plaintiff did not object either in her reply submission or at oral argument. Accordingly, the motion judge considered the motion as to all defendants.

A motion "made during a trial or hearing, shall be by notice of motion in writing, unless the court permits it to be made orally." R. 1:6-2(a) (emphasis added). Although Chase did not file a formal written summary judgment motion, the judge permitted Chase to present an oral motion. Plaintiff had full opportunity to address the motion, and she did not object to Chase's inclusion in defendants' motions. Accordingly, no error occurred in the judge's consideration of summary judgment as to Chase.

II.

We next address all of plaintiff's claims other than her CEPA claim. CEPA's election of remedies provision states:

Nothing in this act shall be deemed to diminish the rights, privileges, or remedies of any employee under any other federal or State law or regulation or under any collective bargaining agreement or employment contract; except that the institution of an action in accordance with this act shall be deemed a waiver of the rights and remedies available under any other contract, collective bargaining agreement, State law, rule or regulation or under the common law.

[N.J.S.A. 34:19-8 (emphasis added).]

This language is "clear and unambiguous" and the "institution of an action under CEPA constitutes a waiver of the rights and remedies available to plaintiff under any other contract, collective bargaining agreement, State law, rule or regulation or under the common law." Young v. Schering Corp., 275 N.J. Super. 221, 238 (App. Div. 1994), aff'd, 141 N.J. 16 (1995). In other words, where a litigant seeks redress under CEPA, the litigant cannot plead other common law or statutory causes of action for the same conduct. Ibid. However, "the waiver provision does not bar common law or statutory claims that are distinct from the CEPA claim." Notte v. Merchants Mut. Ins. Co., 386 N.J. Super. 623, 630 (App. Div. 2006).

Here, plaintiff's non-CEPA claims are not distinct from her CEPA claim. Rather, all of the claims are all based on the same facts as her CEPA claim. Accordingly, summary judgment dismissing plaintiff's non-CEPA claims was proper.

Even if plaintiff's non-CEPA claims were not waived, summary judgment was properly granted as to each of them. First, a plaintiff who claims discrimination based on sex "must show that 'the complained-of conduct (1) would not have occurred but for the employee's gender; and it was (2) severe or pervasive enough to make a (3) reasonable woman believe that (4) the conditions of employment are altered and the working environment is hostile or abusive.'" Godfrey v. Princeton Theological Seminary, 196 N.J. 178, 181 (2008) (quoting Lehman v. Toys 'R' Us, Inc., 132 N.J. 487, 603-04 (1993)); see also Taylor v. Metzgar, 152 N.J. 490, 498 (1998).

We agree with the motion judge that there is not "an iota" of evidence that the alleged discrimination or hostile work environment occurred because of plaintiff's gender and that what happened here, except for the alleged post-whistleblowing retaliatory acts, is purely personal in nature and stems from plaintiff's dissatisfaction with the way her supervisor treated her. However, "[a] supervisor's coldness, lack of civility, or failure to provide employees with Christmas gifts or party invitations, although inhospitable and boorish, cannot qualify as 'severe or pervasive' conduct under the LAD." Shepard v. Hunterdon Dev. Ctr., 174 N.J. 1, 25-26 (2002) (citing Shepard v. Hunterdon Dev. Ctr., 336 N.J. Super. 395, 416 (App. Div. 2001) (observing that "[n]either rudeness nor lack of sensitivity alone constitutes harassment, and simple teasing, offhand comments, and isolated incidents do not constitute discriminatory changes in the terms and conditions of one's employment[]"), aff'd in part, rev'd in part, 174 N.J. 1 (2002)).

Second, false light is one of four classifications of invasion of privacy. Swan v. Boardwalk Regency Corp., 407 N.J. Super. 108, 119 (App. Div. 2009) (citing Rumbauskas v. Cantor, 138 NJ 173, 179-80 (1994)). Where, such as here, a false light claim is grounded in allegations defamatory in nature, the law of defamation applies. Id. at 121-22.

The law of defamation distinguishes between public figures and private persons in terms of the standard of proof. Hill v. Evening News Co., 314 N.J. Super. 545, 554 (App. Div. 1998). Negligence is the standard of proof in a private person defamation case. Costello v. Ocean County Observer, 136 N.J. 594, 612 (1994). Actual malice is the standard of proof when a public official is involved. Ibid.; see also DeAngelis v. Hill, 180 N.J. 1, 12-23 (2004).

Plaintiff is a public official for purposes of her false light invasion of privacy claim. Costello, supra, 136 N.J. at 612 (citing Henry v. Collins, 380 U.S. 356, 357, 85 S. Ct. 992, 993, 13 L. Ed. 2d 892, 893 (1965) and Time, Inc. v. Pape, 401 U.S. 279, 284, 91 S. Ct. 633, 636, 28 L. Ed. 2d 45, 50 (1971) (holding that police officers are public officials for purposes of defamation claims)). As such, plaintiff must show by clear and convincing evidence that defendants acted with actual malice. Id. at 614. See also Rocci v. Ecole Secondaire MacDonald-Cartier, 165 N.J. 149, 159 (2000). To establish actual malice, she must show by clear and convincing evidence that defendants published the alleged defamatory statement with knowledge that it was false or with reckless disregard of whether it was false. DeAngelis, supra, 180 N.J. at 13. In order to demonstrate reckless disregard, plaintiff must show by clear and convincing evidence that the statement was published with a high degree of awareness of its probable falsity or with serious doubts as to its truth. Ibid.; Lynch v. N. J. Educ. Ass'n, 161 N.J. 152, 165 (1999); Costello, supra, 136 N.J. at 614. Plaintiff must produce substantial evidence to create a genuine issue of material fact regarding actual malice. Costello, supra, 136 N.J. at 615. Here, plaintiff failed to provide any proof whatsoever of such actual malice.

Third, to prove intentional infliction of emotional distress, plaintiff must establish all four of the following elements: (1) defendants acted intentionally or recklessly, both in doing an act and producing emotional distress; (2) their conduct was so outrageous in character and extreme in degree as to go beyond all possible bounds of decency; (3) their actions must have been the proximate cause of her emotional distress; and (4) the emotional distress suffered by her was so severe that no reasonable person could be expected to endure it. Tarr v. Ciasulli, 181 N.J. 70, 77 (2004); Buckley v. Trenton Saving Fund Society, 111 N.J. 355, 266 (1988); Turner v. Wong, 363 N.J. Super. 186, 199 (App. Div. 2003); Harris v. Middlesex County College, 353 N.J. Super. 31, 46 (App. Div. 2002). As stated by our Supreme Court in Tarr:

Because the severity of the emotional distress raises questions of both law and fact, the court "decides whether as a matter of law such emotional distress can be found, and the jury decides whether it has in fact been proved."

[Id. at 77 (citing, Buckley, 111 N.J. at 367).]

Thus, to prove her intentional infliction of emotional distress claim, plaintiff must show, among other things, that the emotional distress she suffered was so severe that no reasonable person could be expected to endure it. "Severe emotional distress is a severe and disabling emotional or mental condition[.]" Turner, 363 N.J. Super. at 200 (citing Taylor, supra, 152 N.J. at 515). Severe emotional distress is shown where there is a dramatic impact on a plaintiff's everyday activities or ability to function. Id. at 201 (citing Harris v. Middlesex Cty. College, 353 N.J. Super. 31, 47 (App. Div. 2002) (holding that to prove severe emotional distress there must be interference with daily activities)).

In addition, the threshold for the severity of a plaintiff's emotional distress is significantly greater in claims against public employees, such as the Township. N.J.S.A. 59:9-2(d) states, in relevant part, that:

No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600.00[.]

In Brooks v. Odem, 150 N.J. 395 (1997), the Court made clear that to satisfy the pain and suffering threshold under the New Jersey Tort Claims Act (the "TCA") for physical injury, a plaintiff must show an objective, permanent injury, and a permanent loss of a bodily function that is substantial. Id. at 402-03. A plaintiff alleging a psychological injury, such as intentional infliction of emotional distress, must also show that the injury is both permanent and substantial. Willis v Ashby, 353 N.J. Super. 104, 112-13 (App. Div. 2002) (citing Collins v. Union County Jail, 150 N.J. 407, 420-23 (1997)), certif. denied, 174 N.J. 547 (2002).

In Srebnik v. State, 245 N.J. Super. 344 (App. Div. 1991), we addressed the issue of recovery under the TCA for a psychological injury. In rejecting the plaintiff's claim for negligent infliction of emotional distress, we found, in relevant part, that:

Damages resulting from subjective symptoms of depression and anxiety, without the requisite indicia of permanent physical infirmity, are not recoverable under the [TCA]. Under our view, this reading is consistent with the [TCA's] underlying policy of precluding recovery for "non-objective types of damages" except for aggravating circumstances.

Here, . . . we agree with the trial judge that plaintiff did not suffer a "permanent loss of a bodily function." Her depression and stress did not result from a physical injury, the cause of which is attributable to defendant public entities. Her distress has not resulted in any physically disabling infirmity. Approximately four months after the accident she was able to resume full time her work . . . and after approximately one year she resumed an active social life. In short, the residua of the unfortunate emotional trauma constitute the intangible subjective symptoms of depression, stress and anxiety barred by N.J.S.A. 59:9-2d.

[Id. at 351-52.]

Here, plaintiff has not presented any evidence that she suffers from a severe and disabling emotional or mental condition as a result of defendants' actions, or that there has been a dramatic impact on her everyday activities or ability to function. She also has not presented any evidence that she suffered a permanent loss of a bodily function. Accordingly, summary judgment dismissing plaintiff's intentional infliction of emotional distress claim was properly granted.

Fourth, all contracts contain an implied covenant of good faith and fair dealing. Wade v. Kessler Inst., 172 N.J. 327, 340 (2002) (citing Wilson v. Amerada Hess Corp., 168 N.J. 236, 244 (2001)). The covenant means that "'neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract[.]'" Bak-A-Lum Corp. v. Alcoa Bldg., 69 N.J. 123, 129 (quoting Ass'n Group Life, Inc. v. Catholic War Vets. of U.S., 61 N.J. 150, 153 (1972)). Further, an element of a maintainable cause of action based on the implied covenant of good faith and fair dealing is bad faith and ill motive. Seidenberg v. Summit Bank, 348 N.J. Super. 243, 261 (App. Div. 2002).

Here, plaintiff has suffered no damages as a result of the alleged breach, if there was one. Plaintiff's terms of employment did not change since her pay rate, seniority, and rank remained the same. The $1200 clothing stipend she lost from the transfer was not part of her original employment contract. The only damages she can claim are reputational or emotional distress which are not recoverable under contract law. Further, plaintiff has failed to show bad faith and ill motive.

Fifth, a public employee's speech is protected by the First Amendment if it implicates matters of public concern. Pickering v. Board of Education, 391 U.S. 563, 571-72, 88 S. Ct. 1731, 1736, 20 L. Ed. 2d 811, 819 (1968).

A public employee's speech involves a matter of public concern if it can "be [of] political, social, or other concern to the community." "Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record." When "an employee [comments] upon matters only of personal interest, that public employee speaks not as a citizen upon matters of public policy."

[Carlino v. Gloucester City High School, 57 F. Supp. 2d 1, 31 (D.N.J. 1999) (quoting Connick v. Myers, 461 U.S. 138, 146-148, 103 S. Ct. 1684, 1690, 146-48, 75 L. Ed. 2d 708, 719-20 (1983), aff'd, 44 Fed Appx. 599 (3d Cir. 2002)).]

However, "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S. Ct. 1951, 1960, 164 L. Ed. 2d 689, 701 (2006).

Here, there is no dispute that as a detective in IA, it was plaintiff's duty to report a police officer's unethical or illegal conduct. Accordingly, it is not protected by the First Amendment.

Sixth, plaintiff's contention that defendants violated her due process and equal protection rights lacks sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E). To be sure, plaintiff dedicated only three unpersuasive sentences in her merits brief to these issues.

Finally, 42 U.S.C.A. 1983 states,

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.

[Ibid.]

To prove a 1983 claim, plaintiff must show that the defendants' actions violated her Constitutional rights and that defendants were "acting under color of State law." West v. Atkins, 487 U.S. 42, 48-49, 108 S. Ct. 2250, 2254-55 101 L. Ed. 2d 40, 48 (1988). "The traditional definition of acting under color of state law requires that the defendant in a 1983 action have exercised power 'possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'" Id. at 49, 108 S. Ct. at 2255, 101 L. Ed. 2d at 49.

Here, plaintiff's 42 U.S.C.A. 1983 claim is based on the alleged violation of her First Amendment, due process, equal protection, and civil rights. However, plaintiff fails to prove such action because she was not exercising her First Amendment rights, and she has not shown that her due process, equal protection, and civil rights were violated. Consequently, plaintiff cannot prove a prima facie claim under 42 U.S.C.A. 1983.

III.

We now address plaintiff's CEPA claim. The motion judge held that plaintiff failed to make a threshold showing that she reasonably believed a rule or law had been violated. We disagree.

We use the same standard as the trial court when reviewing a summary judgment motion. Jolley v. Marquess, 393 N.J. Super. 255, 267 (App. Div. 2007); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). The motion judge must determine whether the evidence, "when viewed in the light most favorable to the non-moving party," is "sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill, supra, 142 N.J. at 540. A court may grant summary judgment "if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment as a matter of law." R. 4:46-2(c); Brill, supra, 142 N.J. at 529-30. If there is no genuine issue of fact, we must then decide whether the lower court's ruling on the law was correct. Prudential, supra, 307 N.J. Super. at 167. Applying these standards, we conclude that summary judgment on plaintiff's CEPA claim was improperly granted.

The legislature enacted CEPA "to promote two complementary public purposes: 'to protect and [thereby] encourage employees to report illegal or unethical workplace activities and to discourage public and private sector employers from engaging in such conduct.'" D'Annunzio v. Prudential Ins. Co. of America, 192 N.J. 110, 119 (2007) (quoting Yurick v. State, 184 N.J. 70, 77 (2005)). CEPA is a "broad, remedial legislation" and therefore "must be construed liberally." D'Annunzio, 192 N.J. at 120. The purpose of CEPA is to prohibit any retaliatory action by an employer "against those employees who object to employer conduct that they reasonably believe to be unlawful or indisputably dangerous to the public health, safety or welfare." Mehlman v. Mobil Oil Corp., 153 N.J. 163, 193-94 (1998).

To establish a cognizable claim under CEPA, an employee must show that:

(1) he or she reasonably believed that his or her employer's conduct was violating either a law, rule, or regulation promulgated pursuant to law, or a clear mandate of public policy; (2) he or she performed a "whistle-blowing" activity described in N.J.S.A. 34:19-3c; (3) an adverse employment action was taken against him or her; and (4) a causal connection exists between the whistle-blowing activity and the adverse employment action.

[Massarano v. New Jersey Transit, 400 N.J. Super. 474, 488 (App. Div. 2008) (quoting Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003)) (emphasis added).]

Under CEPA an employer shall not take any retaliatory action against an employee because the employee does any of the following:

c. Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes:

(1) is in violation of a law, or a rule or regulation promulgated pursuant to law . . .

. . . .

(2) is fraudulent or criminal; . . . or

(3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.

[N.J.S.A. 34:19-3.]

An "employee who proceeds under c(1) must show that he or she reasonably believed that the employer's activity, policy or practice 'violat[ed]' a law, rule, or regulation[.]" Maimone v. City of Atl. City, 188 N.J. 221, 230-31 (2006) (quoting N.J.S.A. 34:19-3) (emphasis added).

Plaintiff's CEPA retaliation claim rests solely on section c(1). Plaintiff claims that she reasonably believed that Koontz had violated IA procedures, the Attorney General Guidelines and N.J.S.A. 2C:28-6, which states, in pertinent part, that:

A person commits a crime of the fourth degree if, believing that an official proceeding or investigation is pending or about to be instituted, he:

(1) Alters, destroys, conceals or removes any article, object, record, document or other thing of physical substance with purpose to impair its verity or availability in such proceeding or investigation

[Ibid.]

Viewing the facts in a light most favorable to plaintiff, a jury could find that she reasonably believed that Koontz violated IA procedures, the Attorney General Guidelines and/or N.J.S.A. 2C:28-6. A reasonable jury also could find that defendants retaliated against plaintiff as a result of her whistleblowing activity, that she suffered an adverse employment action as a result, and that a causal connection exists between the whistleblowing activity and the adverse employment action.

Under CEPA, "retaliatory action" is defined as the "discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment." N.J.S.A. 34:19-2(e). It is now firmly established that an adverse employment action can be something less than a termination, demotion or salary reduction. A withdrawal of benefits formerly provided to an employee may, in some circumstances, constitute an adverse employment action. Burlington No. & Santa De Ry. Co. v. White, 548 U.S. 53, 67-70, 126 S. Ct. 2405, 2414-16, 165 L. Ed. 2d 345, 359-61 (2006); Mancini v. Twp. of Teaneck, 349 N.J. Super. 527, 564-65 (App. Div. 2002), aff'd as modified, 179 N.J. 425 (2004); Shepard, supra, 336 N.J. Super. at 419. "[A]ctions that affect wages, benefits, or result in direct economic harm qualify [as retaliation]. So too, noneconomic actions that cause a significant, non-temporary adverse change in employment status or the terms and conditions of employment would suffice." Victor v. State, 401 N.J. Super. 596, 616 (App. Div. 2008).

In Maimone, supra, 188 N.J. at 221, the Court found that the demotion of a police officer from the Special Investigations Unit to a position as a patrol officer, with a corresponding reduction in pay, was actionable under CEPA. Similarly, in Nardello v. Twp. of Voorhees, 377 N.J. Super. 428, 436 (App. Div. 2005), the plaintiff, who was a police lieutenant, alleged that, while he had not suffered a loss of pay or rank, he was: "denied permission to obtain firearms instructor training relative to his membership on the SWAT team; coerced to resign as leader and a member of the SWAT team; denied the ability to work on crime prevention programs . . . removed from the detective bureau, with his authority to supervise taken away
. . . [and] given demeaning jobs for his rank." We found that "while many of the incidents are relatively minor, plaintiff has made a prima facie case and a jury could conclude that they combine to demonstrate a pattern of retaliatory conduct that is specifically prohibited." Id. at 436.

Here, plaintiff alleges several incidents of retaliation, all of which occurred after she engaged in her whistleblowing activity. For example, Koontz diminished plaintiff's workload, she did not include plaintiff in meetings about plaintiff's cases, she did not include plaintiff in the rotation for investigations, and she failed to communicate with plaintiff in a manner appropriate for a supervisor. These are all actions that Chase and Molisso allegedly failed to address and resolve.

Also, Chase transferred plaintiff from IA to the Patrol Unit, which plaintiff claims is considered a demotion throughout the IPD. Further, plaintiff's transfer may not have been "temporary," as she had been in the Patrol Unit for three years. Finally, Chase's issuance of a suspension can be perceived as retaliatory.

Viewing these facts in the light most favorable to plaintiff, a jury could find that plaintiff's employment was adversely affected by her whistleblowing activity and that a causal connection exists between that activity and the adverse employment action. To be sure, the facts alleged here are more extensive than those alleged in Nardello, thus a jury could find that those facts, even if relatively minor when considered individually, "combine to demonstrate a pattern of retaliatory conduct that is specifically prohibited." Nardello, supra, 377 N.J. Super. at 436. Summary judgment on the CEPA retaliation claim is therefore reversed, and that discrete claim is remanded for a jury trial.

IV.

Plaintiff next contends that the Township and the IPD are vicariously liable for the individual defendants' acts. In Lehman, supra, 132 N.J. at 592, the Court established the levels of employer liability for damages in hostile work environment cases:

(1) an employer will be strictly liable for equitable damages and relief; (2) an employer may be vicariously liable under agency principles for compensatory damages that exceed equitable relief; and (3) an employer will not be liable for punitive damages unless the harassment was authorized, participated in, or ratified by the employer.

To hold an employer vicariously liable under the LAD, a plaintiff must "show that the harassment was done by a 'supervisor' who was acting as defendant's agent under traditional agency principles." Entrot v. BASF Corp., 359 N.J. Super. 162, 171 (App. Div. 2003). Under agency law, "[a] master is subject to liability for the torts of his servants committed while acting in the scope of their employment." Lehman, supra, 132 N.J. at 619 (quoting the Restatement (Second) of Agency 219 (1958)). However,

[a] master is not subject to liability for the torts of his servants acting outside the scope of their employment, unless:

(a) the master intended the conduct or the consequences, or

(b) the master was negligent or reckless, or

(c) the conduct violated a non-delegable duty of the master, or

(d) the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation.

[Ibid. (quoting Restatement (Second) of Agency 219 (1958)).]

When determining whether a supervisor was aided in creating a hostile work environment, the jury must make several inquiries:

1. Did the employer delegate the authority to the supervisor to control the situation of which the plaintiff complains ?

2. Did the supervisor exercise that authority?

3. Did the exercise of authority result in a violation of [the LAD]?

4. Did the authority delegated by the employer to the supervisor aid the supervisor in injuring the plaintiff?

[Id. at 620 (quoting Bruce Chandler Smith, When Should an Employer Be Held Liable For The Sexual Harassment by a Supervisor Who Creates a Hostile Work Environment? A Proposed Theory of Liability, 19 Ariz. St. L.J. 285, 321 (1987)).]

Here, if plaintiff can prove to a jury that defendants' actions constituted CEPA retaliation, the record supports a potential jury finding of vicarious liability. Koontz, Molisso, and Chase were all plaintiff's supervisors who had the authority to determine her work hours, assignments, work environment, disciplinary actions, and other matters. The supervisors exercised that authority by allegedly retaliating against plaintiff in the workplace, and this authority aided the supervisors in injuring the plaintiff since plaintiff could not challenge their employment decisions.

V.

Finally, Koontz and Molisso claim qualified immunity. Public officials, such as law enforcement officers, are protected by qualified immunity if their alleged unlawful actions were objectively reasonable. Kirk v. City of Newark, 109 N.J. 173, 186-87 (1988). "Qualified immunity is an affirmative defense that the defendant must establish." Schneider v. Simonini, 163 N.J. 336, 354 (2000) (citing Gomez V. Toledo, 446 U.S. 635, 640-41, 100 S. Ct. 1920, 1923-24, 64 L. Ed. 2d 572, 577-78 (1980)). "[T]he issue of qualified immunity is to be decided by the trial judge." Id. at 359.

The motion judge did not address the qualified immunity issue. Given our ruling on the CEPA retaliation issue, on remand, the motion judge must decide this issue and make appropriate findings of fact and conclusions of law. R. 1:7-4(a).

 
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

U.S. Const. amend I.

Plaintiff worked in IA for over a year before Koontz began working there.

According to Molisso, Koontz was new to IA at the time and apparently did not understand the procedures.

On March 30, 2005, the EEOC issued a Dismissal and Notice of Rights. Plaintiff withdrew the NJDCR complaint on or about April 26, 2005, stating that she would be filing a civil lawsuit.

From May 2003 to December 2004, plaintiff earned 426 hours of overtime, Koontz earned 302 hours, Melenka earned 213 hours, Shamberger earned 213 hours, and Molisso earned 178 hours.

We decline to consider plaintiff's contention, raised for the first time on appeal, that her CEPA claim is based on her belief that defendants violated the LAD or her due process or equal protection rights. North Jersey Media Group, Inc. v. Bergen County Prosecutor's Office, 405 N.J. Super. 386, 392 (App. Div. 2009). See also Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). For the same reasons, we decline to consider Chase's claim to qualified immunity.

See also Burlington No., supra, 548 U.S. at 69, 126 S. Ct. at 2415-16, 165 L. Ed. 2d at 360 (noting that the exclusion of an employee from weekly training lunch that contributes to advancement may be sufficient to establish a prima facie case of retaliatory conduct); Green v. Jersey City Bd. of Educ., 177 N.J. 434, 438-40 (2003) (finding that a combination of relatively minor instances of negative behavior directed to an employee may reveal a pattern of retaliatory behavior); El-Sioufi v. St. Peter's University Hosp., 382 N.J. Super. 145 (App. Div. 2005) (finding that a nurse's demotion from a scrub nurse to a break nurse when looked at in conjunction with her personnel records, which contained numerous complaints regarding her work performance, did not amount to adverse employment action under the LAD); Beasley v. Passaic County, 377 N.J. Super. 585, 607 (App. Div. 2005) (finding that actions resulting in a "bruised ego" are not covered by CEPA); Klein v. Univ. of Med. and Dentistry of N.J., 377 N.J. Super. 28, 47 (App. Div.) (finding that a temporary reassignment generally is not actionable), certif. denied, 185 N.J. 39 (2005); Cokus v. Bristol-Myers Squibb Co., 362 N.J. Super. 245, 246 (App. Div.) (finding that a supervisor's decision to no longer socialize with employees is not an adverse employment action), certif. denied, 178 N.J. 32 (2003); Mancini, supra, 349 N.J. Super. at 564-65 (finding that plaintiff's transfer from supervisor of a motor patrol to the crime prevention unit, amounted to a demotion); Hancock v. Borough of Oaklyn, 347 N.J. Super. 350, 361 (App. Div.) (finding generally, that emotional distress alone is not actionable), certif. granted, 174 N.J. 191 (2002), appeal dismissed, 177 N.J. 217 (2003).

This is subject to the trial court's ruling on remand concerning the individual defendant' qualified immunity. See Part V., infra.

(continued)

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A-4972-07T2

August 14, 2009